State v. Nigrin

[Cite as State v. Nigrin, 2016-Ohio-2901.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0056
- vs - :
MICHAEL L. NIGRIN, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Central District Court.
Case No. 15 CRB 00024.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Michael L. Nigrin, appeals the April 27, 2015 judgment of the
Trumbull County Central District Court convicting him of one count of criminal trespass,
after a bench trial. Based on the following, we affirm the decision of the lower court.
{¶2} On January 26, 2015, William Kloboves, a resident of Bazetta Township,
filed a complaint with the Trumbull County Central District Court alleging appellant
entered onto his property on the afternoon of December 31, 2014, without permission.
The state filed charges against appellant on one count of criminal trespass, a
misdemeanor of the fourth degree, in violation of R.C. 2911.21. Appellant entered a
plea of “not guilty.” A bench trial commenced. The following facts were adduced at
trial:
{¶3} Mr. Kloboves testified that while he was working in his garage, appellant
opened the garage door, without permission, and indicated he wanted to talk. Mr.
Kloboves responded that appellant was not permitted on his property and told him to
leave. Appellant initially refused to leave; he did so, however, after being asked five or
six times. Mr. Kloboves took photographs of appellant during the incident with his
cellular phone, which were admitted at trial. Mr. Kloboves contacted the Bazetta Police
Department and later met with Detective Joe Sofchek to file a report and give him the
photographs. Mr. Kloboves testified he had previously warned appellant to stay off of
his property and, further, noted appellant did not have permission to enter onto his
property on the day in question.
{¶4} Detective Sofchek testified he had been to Mr. Kloboves’ property several
times to address complaints of trespassing by appellant, and he had informed appellant
to refrain from entering onto Mr. Kloboves’ property.
{¶5} Appellant testified that while he did enter onto Mr. Kloboves’ property;
however, it was to inform Mr. Kloboves that his barn roof, which had blown off, was
causing damage to appellant’s property. Appellant indicated that when Mr. Kloboves
first asked him to leave his property, he complied and left with no argument. Appellant
acknowledged that he was aware that he was not permitted on Mr. Kloboves’ property.
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{¶6} Following a bench trial, appellant was found guilty of criminal trespass.
He was sentenced to 30 days in jail, a fine of $250, and a one-year reporting probation
period; a condition of his probation being that he is prohibited from owning or
possessing any firearms or ammunition for firearms.
{¶7} Appellant timely appealed and as his first assignment of error alleges:
{¶8} “The trial court erred, as a matter of law, by finding that the appellant’s
reasons for entering the premises in question were irrelevant, despite the fact that the
trial court accepted the appellant’s version of events in that regard as being true.”
{¶9} Under this assigned error, appellant maintains the trial court erred in its
finding of guilt because he, as a homeowner, was justified in trespassing onto Mr.
Kloboves’ property. Specifically, appellant maintains that pieces of Mr. Kloboves’ barn
roof had blown off, causing damages to appellant’s property. Appellant contends the
trial court found him credible and, in fact, made factual findings regarding the damage to
appellant’s property caused by Mr. Kloboves’ dilapidated barn.
{¶10} Pursuant to R.C. 2911.21(A)(1), a criminal trespass occurs when a
person, “without privilege to do so,” “[k]nowingly enter[s] or remain[s] on the land or
premises of another.” R.C. 2901.01(A)(12) defines “privilege” as “an immunity, license,
or right conferred by law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity.” “Land or premises”
includes “any land, building, structure, or place belonging to, controlled by, or in custody
of another[.]” R.C. 2911.21(F)(2).
{¶11} The record demonstrates that Mr. Kloboves has two buildings on his
property. On the day in question, Mr. Kloboves was in his garage working on his truck.
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Appellant opened Mr. Kloboves’ garage door and entered the garage. An exhibit was
admitted which illustrates appellant entering the garage. Mr. Kloboves testified that he
asked appellant to leave his property five or six times before he complied. Mr. Kloboves
further testified that he has previously told appellant he is not permitted on his property.
This testimony was corroborated by Detective Sofchek, who testified he had previously
told appellant to stay off of Mr. Kloboves’ property. Further, appellant admitted that in
the past, Mr. Kloboves advised him not to enter onto his property.
{¶12} The record demonstrates that appellant was aware he was not permitted
on Mr. Kloboves’ property; he had been warned not only by Mr. Kloboves but also the
police. Appellant, through his testimony, acknowledged he was not permitted on Mr.
Kloboves’ property. Sufficient evidence, therefore, was presented to establish a
violation of R.C. 2911.21(A)(1).
{¶13} Appellant next maintains that the trial court erred in finding him guilty
because it found he was on Mr. Kloboves’ property due to his concerns about his
property damage. Although the trial court acknowledged this statement may be true, it
certainly did not make such a finding. In fact, the following exchange, which occurred
between appellant and the trial court, belies appellant’s argument:
A: Mr. Kloboves’s property damaged my property. His barn roof is
blowing off and damaging my property. Then he turns around and
–
COURT: -- are you going to get something relevant to a defense to
this charge relative to December 31st of 2014?
A: Yes.
***
A. Your Honor, Mr. Kloboves is not being honest with you.
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COURT: About what?
***
COURT: -- did he tell you that you can come into the property?
A. No.
COURT: He did not. You’ve been told more than once that you
are not allowed on his property; correct?
A. Yes.
***
COURT: Yet you were on his property?
A. His property is causing damage to my property.
COURT: That doesn’t give you license to go on his property. If you
think you have a cause of action against someone, that doesn’t
give you the right to go on their property.
{¶14} Appellant also claims he should not have been convicted because he was
on Mr. Kloboves’ property in order to prevent damages to his property. Defense of
property is a recognized defense in Ohio. See, e.g., State v. Bruckner, 8th Dist.
Cuyahoga No. 63296, 1993 Ohio App. LEXIS 4643, *3-4 (Sept. 30, 1993). The burden
is on the defendant to prove the elements of an affirmative defense by a preponderance
of the evidence. R.C. 2901.05(A).
Defense of property, or defense of ejectment, is akin to self-
defense. A property owner may eject a trespasser by the use of
reasonable force after the trespasser has received notice to depart
and fails to do so within a reasonable time. A person lawfully in his
or her own residence has no duty to retreat before using
reasonable force in defense of that person’s residence.
State v. White, 2d Dist. Montgomery No. 23816, 2010-Ohio-4537, ¶35 (citations
omitted).
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{¶15} The record does not establish the defense of property was applicable in
the case sub judice. Under the facts of this case, appellant cannot avail himself of the
defense, for it was appellant who committed a trespass onto Mr. Kloboves’ property. He
was not on his own property trying to expel Mr. Kloboves. Further, the defense of
property is offered when force is used; there was, however, no evidence of force in this
case.
{¶16} Appellant’s assignment of error is without merit.
{¶17} As his second assignment of error, appellant alleges:
{¶18} “The trial court erred and abused its discretion by ordering that the
appellant be prohibited from owning or possessing any firearms or ammunition as a
condition of probation.”
{¶19} Appellant argues the trial court abused its discretion in imposing as a
condition of his probation that he could “not own or possess any firearms or ammunition
for firearms.” Appellant argues this condition does not relate to the crime and is not
reasonably related to the prevention of future criminal activity.
{¶20} Generally, misdemeanor sentencing is within the discretion of the trial
court and will not be disturbed if the sentence is within the statutory range. State v.
Rogers, 11th Dist. Trumbull Nos. 2009-T-0051 & 2009-T-0052, 2010-Ohio-197, ¶9,
quoting Conneaut v. Peaspanen, 11th Dist. Ashtabula No. 2004-A-0053, 2005-Ohio-
4658, ¶18. When reviewing the sentence, the presumption is that the trial court’s
findings were correct. Id. at ¶9.
{¶21} R.C. 2929.27(C) provides that in addition to the specific sanctions
authorized under division (A) of that section, a court imposing a sentence for a
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misdemeanor, other than a minor misdemeanor, “upon an offender who is not required
to serve a mandatory jail term may impose any other sanction that is intended to
discourage the offender or other persons from committing a similar offense if the
sanction is reasonably related to the overriding purposes and principles of misdemeanor
sentencing.” The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender. R.C.
2929.21(A). To achieve those purposes, a sentencing court must consider “the impact
of the offense upon the victim and the need for changing the offender’s behavior,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or the victim and the public.” Id.
{¶22} While a trial court has broad discretion in imposing probation
conditions, that discretion is not limitless. In determining whether
probation conditions are reasonably related to the statutory purpose
of probation and overbroad, a reviewing court should consider
‘whether the condition (1) is reasonably related to rehabilitating the
offender, (2) has some relationship to the crime of which the
offender was convicted, and (3) relates to conduct which is criminal
or reasonably related to future criminality and serves the statutory
ends of probation.’
State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006-Ohio-3200, ¶22, quoting State
v. Jones, 49 Ohio St.3d 51, 52-53 (1990).
{¶23} We agree with the state that the trial court did not abuse its discretion in
prohibiting appellant from owning or possessing any firearms or ammunition for
firearms. The record demonstrates that appellant has failed to obey previous warnings
to refrain from entering onto Mr. Kloboves’ property. He opened his garage door and
entered without permission or invitation. This is dangerous behavior. During
sentencing, Mr. Kloboves informed the trial court that appellant has had encounters with
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Mr. Kloboves’ friends and family, taking pictures and video of them from his property.
The trial court recognized that similar disputes have erupted in the past, and appellant
has repeatedly failed to refrain from entering onto Mr. Kloboves’ property. In fact, the
trial court noted that appellant had been charged in 2010, wherein he entered onto Mr.
Kloboves’ property without permission. The trial court noted that this conduct has
become an “obsession” on the part of appellant. Observing these prior incidents, the
trial court stated: “no amount of prior warnings, threats, and commands have had any
impact on you.”
{¶24} Appellant complains his conviction was only a “low grade misdemeanor”
and, thus, such a probation condition was not warranted. Yet, the record is replete with
evidence that appellant has engaged in ongoing harassment and has repeatedly failed
to heed not only Mr. Kloboves’ instructions to stay off the subject property, but also that
of both the police and trial court. Further, it is apparent the trial court was concerned
about appellant’s obsessive behavior with regard to Mr. Kloboves. It is the type of
conduct that could easily provoke a physical confrontation, and there is no rational
excuse for it. Appellant’s behavior is completely inappropriate, aberrant, and cause for
serious concern. We also recognize there is some indication in the record that
appellant is seeking mental health treatment. And, although the record does not divulge
the specifics of appellant’s mental health treatment, we do note there are statutes that
prohibit certain persons from possessing firearms. See, e.g., R.C. 2923.13 (felons and
incompetents), and 2923.15 (persons under the influence of drugs or alcohol).
Consequently, we find this term of appellant’s probation was reasonably related to
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rehabilitating the offender, bore some relationship to appellant’s conviction, and served
the statutory ends of probation.
{¶25} Appellant’s second assignment of error is without merit.
{¶26} The judgment of the Trumbull County Central District Court is hereby
affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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